DNA statistical testimony and additional DNA statistical
evidence presented on remand and the district court’s supplemental findings and
conclusions relating thereto exceeded the scope of remand.

The district court did not abuse its discretion in admitting:
(1) DNA evidence, having determined that it was foundationally reliable; (2)
probability statistics on DNA testing using the product rule; (3) testimony
that the defense could have conducted its own DNA testing; and (4) a picture on
the wall depicting a human image that was similar to the position of the
victim’s body.

Prosecutor did not commit prosecutorial misconduct by
making reasonable inferences and arguments based on the evidence presented.

Prosecutor committed prosecutorial misconduct by stating
in closing argument that a picture found in the defendant’s bedroom reflected
the defendant’s personality and values, but the verdict was surely
unattributable to the prosecutor’s improper character argument and the
misconduct is harmless beyond a reasonable doubt.

Affirmed.

Considered and
decided by the court without oral argument.

O
P I N I O N

ANDERSON, Russell A.,
Justice.

Appellant Tony
Allen Roman Nose was convicted in Washington County of first-degree murder
while committing or attempting to commit criminal sexual conduct and sentenced
to life in prison without the possibility of parole for the death of Jolene
Stuedemann. Upon review, we stayed the
appeal, retained jurisdiction, and remanded the case to the district court for
a hearing on whether the PCR-STR method of testing DNA has gained general
acceptance within the relevant scientific community. State v. Roman Nose, 649 N.W.2d 815, 823 (Minn.
2002).

On remand, the
district court issued its findings of fact and concluded in its order that
PCR-STR testing is generally accepted in the relevant scientific community as
reliable. In Roman Nose’s appeal, now
before this court, he concedes the general acceptance issue given our recent
holding in State v. Traylor, 656 N.W.2d 885 (Minn. 2003). We address the remaining issues raised by
Roman Nose in his initial appeal as well as additional arguments presented
following remand. Specifically, in his
initial appeal, Roman Nose asserted that the district court erred when it
admitted: (1) DNA evidence; (2) random match probability statistics; (3)
testimony that Roman Nose could have conducted his own DNA testing; and (4) a
picture found on Roman Nose’s bedroom wall.
Roman Nose further argued that the prosecutor committed misconduct by
misstating testimony and by misleading the jury about inferences that could be
drawn from the evidence. Roman Nose now
also asserts that the DNA evidence, even if admissible, was presented in a
misleading and prejudicial manner.We
affirm.

The
body of 17-year-old Jolene Stuedemann was found in her home on July 11,
2000. The autopsy revealed that she had
been beaten, stabbed multiple times with a screwdriver, and sexually
assaulted. That same evening, Roman
Nose took his Walkman and left his group home residence without
permission. He went to the home of Andy
Reiman, the boyfriend of Stuedemann.
There, Roman Nose, Reiman, and Stuedemann drank beer and watched
television. Roman Nose also claimed
that Stuedemann gave him some marijuana and that he and Stuedemann did some
“coke.”

Roman
Nose testified that he was sitting on the couch listening to music with his
eyes shut and that when he opened his eyes, he saw Reiman and Stuedemann
engaging in sexual intercourse.
According to Roman Nose, he and Stuedemann then had sex while Reiman
slept. Reiman testified, however, that
he did not fall asleep immediately after he and Stuedemann had sex and that he
was certain that Stuedemann did not have sex with Roman Nose.

Stuedemann
left around 3:30 a.m. while Roman Nose was sleeping. Reiman then woke Roman Nose and he left around 4 a.m. Roman Nose eventually returned to the group
home. Because he had been reported as a
runaway the night before, the house parent notified police of Roman Nose’s
return to the group home and a police officer interviewed Roman Nose. Roman Nose told the officer that he had been
with Reiman the night before.

After
talking with Roman Nose, the officer responded to a call that resulted in the
discovery of Stuedemann’s body. At the
scene, investigators discovered part of a set of headphones under Stuedemann’s
body and a blood-stained screwdriver near the body. They also found a piece of crumpled newspaper in Stuedemann’s
mouth and a bathroom towel with blood on it.
Dolores Schoenbauer, a forensic scientist at the Minnesota Bureau of
Criminal Apprehension (BCA), performed DNA testing on the blood found on the
newspaper, screwdriver, and bathroom towel.
Schoenbauer testified that the blood matched Stuedemann’s DNA profile
and that the probability of a match on the blood on the newspaper and
screwdriver was 1 in 63 trillion.[1] Fingerprint analysis was also performed on
the newspaper and a latent fingerprint was found that matched Roman Nose’s left
middle finger.

Subsequently,
the house parent learned of blood-stained clothing belonging to Roman Nose that
had been placed in a trash bag in the garage of the group home, and she
notified the police. Authorities found
the lower half of a set of headphones in the group home’s kitchen garbage and a
Walkman with no headphones attached in Roman Nose’s bedroom. The police also found a pair of boxer shorts
in Roman Nose’s bedroom that were stained with a mixture of blood and semen and
a picture on the wall that depicted a suspended human form with arms extended
and stars trailing from the hands.

Forensic
testing on the headphone indicated that the headphones found in the garbage and
the part of the headphones found under Stuedemann’s body could have been a
match. DNA testing was performed by the
BCA on the blood on the jeans and jersey found in the garage and on the
blood/semen mixture on the boxer shorts found in Roman Nose’s bedroom. The BCA’s Schoenbauer testified that the
blood found on Roman Nose’s jeans and jersey matched Stuedemann’s DNA profile,
with the probability of such a match 1 in 63 trillion. When analyzing the jeans, Schoenbauer also
found semen on the zipper area. DNA
testing by Schoenbauer revealed that the semen contained a mixture of DNA, with
the predominant DNA profile matching Roman Nose’s DNA profile. Schoenbauer testified that the probability
of a match of the predominant DNA profile was 1 in 63 trillion. As to the blood/semen mixture found on Roman
Nose’s boxer shorts, Schoenbauer first performed a differential extraction to
separate the sperm cell from the nonsperm cell and then analyzed the respective
parts. She determined that the sperm
portion of the mixture matched Roman Nose’s DNA profile with the probability of
a match 1 in 63 trillion and that the nonsperm portion was consistent with
coming from both Roman Nose and Stuedemann.

As
part of the investigation, a perineal swab and vaginal swabs were also taken
from Stuedemann’s body and tested for semen, which was found on both swab
types. Schoenbauer testified that DNA
testing on the perineal swab indicated that Roman Nose was the source of the
semen with a probability of a match 1 in 63 trillion. Schoenbauer further testified that the vaginal swabs contained a
mixture of DNA with the predominant DNA profile matching Roman Nose’s DNA
profile and the probability of such a match was 1 in 63 trillion. Schoenbauer also identified weaker DNA
profiles on the vaginal swabs and testified that she could not eliminate either
Reiman or Stuedemann as possible sources of the weaker DNA profiles.

Roman
Nose testified at trial and offered his version of events that transpired that
night. According to Roman Nose, after
he left Reiman’s home he began walking back to the group home and realized he
did not have his Walkman. He attempted
to sneak into the group home, but when that attempt failed, he went to
Stuedemann’s home. He found the lights
on, but nobody answered the door.
Fearing that Stuedemann had overdosed, he entered the home through the
back door and discovered her body.
Roman Nose testified that he ran inside, knelt on one knee beside the
body, saw some paper stuffed in her mouth, and tried to pull it out but could
not. He then saw his Walkman next to
Stuedemann’s body. Roman Nose testified
that he did not call police because he was scared because he had used drugs and
had sex with Stuedemann, had her blood on his clothing, and his Walkman was
next to her body. Roman Nose testified
that he then vomited in the toilet, took his Walkman, and ran to the group
home. He changed his clothes and slept
in a van in front of the group home.
Roman Nose told a house parent that he had changed clothes because he
had spilled beer on them.

Roman
Nose was found guilty by a Washington County jury of murder in the first degree
while committing or attempting to commit criminal sexual conduct and
premeditated murder in the first degree.
The district court entered judgment of conviction on the charge of
murder in the first degree while committing or attempting to commit criminal
sexual conduct in the first or second degree under Minn. Stat.
§ 609.185(2) (2000) and sentenced Roman Nose to life in prison without the
possibility of parole.

Roman
Nose appealed to this court, asserting that the district court erred when it
admitted DNA evidence without conducting a hearing on the first prong of the Frye-Mack
standard, the general acceptance of the PCR-STR[2]
method of testing DNA currently being used by the BCA. Roman Nose further argued that the court
erred when it concluded under prong two of the Frye-Mack standard that
the BCA’s method of DNA testing produced evidence that was foundationally
reliable and accurate and allowed the admission of the DNA evidence. In addition to the allegedly erroneous
admission of the DNA evidence, Roman Nose also challenged the court’s admission
of random match probability statistics, of testimony that it was BCA policy to
save a portion of the physical evidence for the defendant to conduct his own
DNA testing, and of a picture found on the wall of Roman Nose’s bedroom. Lastly, Roman Nose asserted that the
prosecutor committed prosecutorial misconduct when he misstated testimony and
misled the jury about inferences that could be drawn from the evidence. Because of these errors by the district
court and the prosecution, Roman Nose asserted that he was denied his right to
a fair trial and consequently, should be awarded a new trial.

Upon review, we stayed the appeal, retained jurisdiction,
and remanded the case to the district court for “a hearing on whether the
PCR-STR method of testing DNA has gained general acceptance within the relevant
scientific community.” Roman Nose,
649 N.W.2d at 823. Upon remand,
the district court held a Frye-Mack hearing as instructed and heard
testimony from 13 witnesses.
Additionally, the court heard testimony and received documentary
evidence related to statistics and population databases although it recognized
that the evidence may be beyond the scope of the remand.

Subsequent to the hearing, the district court issued its
findings of fact and concluded in its order that PCR-STR testing is generally
accepted in the relevant scientific community as reliable. In addition, the court issued supplemental
findings and conclusions on the presentation of DNA probability statistics
based on the additional evidence presented during the hearing. Upon Roman Nose’s motion, this court vacated
the stay and reinstated Roman Nose’s appeal.

Roman Nose now
concedes the general acceptance issue given our recent holding in State v.
Traylor. 656 N.W.2d at 893.
However, he continues to argue that his conviction should be overturned
and he be granted a new trial based on the other issues originally raised, but
not resolved, in his initial appeal to this court. In addition, based on the additional information presented in the
Frye-Mack hearing on remand, Roman Nose now contends that the DNA
evidence was presented to the jury in a misleading and prejudicial manner.

I.

We begin by examining Roman Nose’s challenge to the
district court’s evidentiary rulings regarding the admissibility of
evidence. Rulings on evidentiary
matters rest within the sound discretion of the trial court, and we will not
reverse such evidentiary rulings absent a clear abuse of discretion. State v. Chomnarith, 654 N.W.2d 660,
665 (Minn. 2003).

Admissibility of DNA Evidence

Roman Nose
asserts that the district court erred in concluding that the DNA testing
performed by the BCA was reliable under prong two of the Frye-Mack
standard and thereby allowing the admission of the DNA evidence. A review of Roman Nose’s arguments indicates
that he does not contend that the BCA erred in the processing of the DNA
evidence in his particular case.
Instead, Roman Nose contends that the BCA’s methodology for DNA testing
is unreliable in general because the manufacturer who produces the kits used to
perform the DNA analysis has not released its primer sequences and the
appropriate developmental validation studies have not been published. Roman Nose further contends that the state
has “failed to demonstrate that there exist established standards for
conducting PCR-STR tests or interpreting the results of such testing.”

This court has
addressed these issues in State v. Traylor. In Traylor, we determined that the BCA had demonstrated
foundational reliability in its DNA testing by showing compliance with the DNA
Advisory Board (DAB) standards, the current standards and procedures applicable
to forensic laboratories doing DNA testing.
656 N.W.2d at 897-98. Roman Nose
has not shown or argued that the BCA has not complied with the DAB standards in
this case. We conclude, therefore, that
the district court did not abuse its discretion when it concluded that the DNA
evidence had foundational reliability under the second prong of the Frye-Mack
standard and that the DNA evidence was admissible.

Admissibility of Random Match Probability Statistics

In the initial appeal to
this court, Roman Nose argued that the BCA should not have been allowed to
testify using random match probability statistics, also known as the product
rule, that there was a 1 in 63 trillion probability that a randomly selected
person would have the same DNA profile as Roman Nose or Stuedemann.[3] We now address this issue.

In Roman Nose’s initial
arguments to this court, he asserted that this court recognized potential
sources of error in computing probability figures in State v. Bloom, 516
N.W.2d 159, 160-62 (Minn. 1994), but, nevertheless, upheld use of the “interim
ceiling method” recommended by the National Research Council (NRC) because it
“is a conservative method of statistical calculation designed to favor the
defendant.” Because the DNA probability
statistics were calculated under the product rule and not the interim ceiling
method, Roman Nose argued that the DNA probability statistics should not be
admissible. Roman Nose also argued
against the use of the product rule based on findings by an outside consultant
that there were disparities and significant linkage disequilibrium in the BCA’s
databases.

In response, the state
asserted that the interim ceiling method approved in Bloom was not used
with the PCR-STR method of DNA testing because of technological
advancements. Further, the state argued
that the product rule had been recommended by the NRC in their updated report
issued in 1996 for PCR-STR testing and it was, therefore, a proper means of
presenting the probability of a random match.[4] As for the BCA’s database, the state
asserted that any departures from linkage equilibrium would have a “relatively
minor effect” on the product rule.

On remand, both
parties presented additional testimony and evidence on the alternative
probability statistics used in the presentation of DNA evidence. Based on this additional evidence, the
district court made supplemental findings and conclusions on the presentation
of DNA evidence. In its supplemental
findings, the court concluded that for single source samples, the product rule
was generally accepted in the forensic scientific community as producing results
that are scientifically reliable as accurate.
For mixtures, however, the court concluded that, except in limited
cases, the results of DNA identity analysis should be presented using the
Combined Probability of Exclusion (CPE)[5]
or the Likelihood Ratio (LR)[6]
calculation and not the product rule.
In reaching these conclusions, the court did not state that it erred
when it allowed the state to present DNA evidence using the product rule at
trial. In this appeal, both parties
have provided supplemental arguments on the statistics used in the presentation
of DNA evidence based on the additional findings and conclusions made by the
district court.

On remand, it is
the duty of the district court to execute the mandate of this court strictly
according to its terms. Halverson v.
Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982). “The trial court has no power to alter,
amend, or modify [this court’s] mandate.”
Id. (citing Tankar Gas, Inc. v. Lumbermen’s Mut. Cas. Co.,
215 Minn. 265, 9 N.W.2d 754 (1943)).

After our
initial review, we remanded this case to the district court “for a hearing on
whether the PCR-STR method of testing DNA has gained general acceptance within
the relevant scientific community,” not on the statistics used to present DNA
evidence. Roman Nose, 649 N.W.2d
at 823. The district court, itself,
acknowledged in its order that its supplemental findings and conclusions on the
probability statistics “are more relevant to the weight to be given PCR-STR
analysis than to the general acceptance of such analysis” and that some of the
evidence received was beyond the scope of the hearing ordered. We hold that the DNA statistical testimony
and additional DNA statistical evidence along with the district court’s
supplemental findings and conclusions relating thereto exceeded the scope of
remand.

Having reached
this conclusion, we must then decide to what extent, if any, we consider the
additional information presented on probability statistics in addressing Roman
Nose’s challenge to the use of the product rule. We have in the past refused to consider findings made by a
district court that exceeded the scope of remand even if such findings were
supported by the record. SeeInterstate
Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 580 (Minn.
2000) (concluding that additional reasons for denial of a conditional use
permit (CUP) not raised in the initial proceedings could not be used to support
denial of the CUP because they were beyond the scope of remand); Sefkow v.
Sefkow, 427 N.W.2d 203, 213 (Minn. 1988) (concluding that the district
court erred in determining the custody of a sibling because it was beyond the
scope of remand). Policy considerations
further support this conclusion. If we
were to consider additional evidence presented beyond the issue to be determined
on remand, the parties might consider the remand proceedings to be a “second
bite at the apple” and attempt to further litigate all issues in the case. Additionally, if the focus of the proceeding
on remand is on a specific issue and one of the parties is allowed to introduce
evidence on a second issue, the opposing parties may not be adequately prepared
to address the second issue, and we may make conclusions based on incomplete
information.

We therefore
conclude that the additional testimony and evidence presented on probability
statistics at the hearing on remand will not be considered in resolving the
question of whether the district court abused its discretion when it allowed
DNA evidence based on the product rule.
Accordingly, we will limit our review to the record as it was at the
time of the original appeal to this court.

The record reveals that the district court had the
following information available to it at trial. Prior to 1994, this court had consistently limited the
admissibility of statistical population frequency evidence. SeeState v. Joon Kyu Kim, 398
N.W.2d 544, 548 (Minn. 1987); State v. Boyd, 331 N.W.2d 480, 485 (Minn.
1983); State v. Carlson, 267 N.W.2d 170, 176 (Minn. 1978). In Carlson, we held that the district
court erred when it allowed expert testimony that there was a 1-in-800 chance
that the pubic hairs found on the victim were not the defendant’s and a
1-in-4,500 chance that the head hairs found clutched in the victim’s hand were
not the defendant’s. 267 N.W.2d at 176. In Boyd, we held that testimony that
none of the tests excluded the defendant was admissible, but that probability
evidence of a 99.911 percent likelihood of paternity based on blood test
results was inadmissible. We noted
that:

[T]here
is a real danger that the jury will use the [statistical population frequency]
evidence as a measure of the probability of the defendant’s guilt or innocence
and that the evidence will thereby undermine the presumption of innocence,
erode the values served by the reasonable doubt standard, and dehumanize our
system of justice.

331 N.W.2d at 483. In Kim, the state attempted to
introduce expert testimony that the semen found in the victim’s body and on a
bed sheet was consistent with Kim’s blood type and that 96.4 percent of the
males in the Twin Cities could be excluded as possible sources of the semen
found on the bed sheet. 398 N.W.2d at
547. In that case, we reasoned that:

As
in Boyd, the expert called by the state in this case should not be
permitted to express an opinion as to the probability that the semen is Kim’s
and should not be permitted to get around this by expressing the opinion in
terms of the percentage of men in the general population with the same
frequency of combinations of blood types. The expert should be permitted to testify, however, as to the
basic theory underlying blood testing, to testify that not one of the
individual tests excluded Kim as a source of the semen and to give the
percentage of people in the general population with each of the individual
blood types, and to express an opinion that scientific evidence is consistent
with Kim having been the source of the semen.

Id.
at 549 (emphasis in original).

In 1994, we created a DNA exception to the rule against
admission of statistical probability evidence in criminal prosecutions to prove
identity in Bloom. 516 N.W.2d at
160. In creating this new DNA
exception, we noted that the justification for the exception was “the National
Research Council’s [NRC’s] recent adoption of the conservative ‘interim ceiling
method’ for computation of the probability that a randomly selected person
would have the same DNA profile as that of a sample of bodily fluids found at a
crime scene.” Id. Under the DNA exception, we held that if the
evidentiary foundation was sufficient, a properly qualified expert could give
an opinion as to the random match probability using the NRC’s [interim ceiling
method] approach and not be limited to stating that the DNA test results are
merely consistent with the defendant being the source of the evidence. Id. at 167-68. We further held, however, that the expert
should not be allowed to testify that a particular profile is unique, state
that the defendant is the source to the exclusion of all others, or express an
opinion as to the strength of the evidence.
Id. at 168.

Subsequent to Bloom, the NRC re-examined the use
of the ceiling principles, which include the “interim ceiling method,” in
calculating the product rule in its 1996 report. National Research Council, The Evaluation of Forensic DNA
Evidence 156-159 (1996). The NRC
concluded that the ceiling principles were not applicable to PCR-based
systems. Id. at 158. The NRC further determined that the
procedures recommended in Chapter 4 of the report “encompass suitable degrees
of conservatism” and that with such procedures available, the interim ceiling
principle was no longer necessary. Id.
at 159. One of the recommendations made
by the NRC in Chapter 4 was that “[i]n general, the calculation of a profile
frequency should be made with the product rule.”[7]Id. at 122.

In addition to adopting the adjustments recommended
by the NRC in its 1996 report, the BCA also adjusted its use of the product
rule in accordance with recommendations made by the outside consultant who
found departures from linkage equilibrium in the BCA’s database. Given our holding in Bloom, the new
recommendations from the NRC, and the BCA’s use of an outside consultant to
ensure accurate reporting of information, the district court could have reasonably
concluded at the time of trial that the use of the product rule to report DNA
evidence was appropriate.

We recognize that use of the
product rule to present DNA evidence results in extremely large numbers and
because of the large numbers, the concern that we articulated in Boyd is
still there—that the jury will use the probability evidence as a measure of the
probability of the defendant’s guilt or innocence, thereby undermining the
presumption of innocence. We further
cautioned district courts in State v. Kromah to “be mindful of the
potential impact such numbers may have on jurors” and noted that courts should
“take steps to ensurethat the presentation of the statistical evidence
is not unfairly prejudicial or misleading.” 657 N.W.2d 564, 567 n.4 (Minn. 2003). While recognizing the potential impact
the large numbers generated by use of the product rule may have on jurors, we
also recognize that the scientific community has approved the use of the
product rule for analysis of results obtained from the PCR-STR method of
testing DNA, and we have continually looked to the scientific community for
guidance in resolving difficultissues such as these. Further, the record indicates that
Schoenbauer’s testimony that the probability of a match was 1 in 63 trillion
was made as part of her overall presentation of DNA results and was not
highlighted or emphasized above herother conclusions, thereby
increasing the likelihood that jurors would place undue weighton the
statistical results. We therefore conclude
that the DNA probability statistics werenot presented in a prejudicial
or misleading manner and that the district court did not abuse its discretion
in admitting DNA probability statistics using the product rule in this
case.

Because of the “danger that
juries will misunderstand, place undue weight on, or make inappropriate
inferences from statistical probability testimony,” Roman Nose contends
that if we conclude that the statistical probability testimony is admissible,
the district court should have provided cautionary jury instructions such as
those proposed in Justice Page’s concurring opinion in Bloom.[8] The district court concluded thatsuch
cautionary jury instructions were not necessary in this case. The court believed that such an instruction
would highlight the importance of DNA opinion evidence over other scientific
opinion evidence such as the medical examiner’s analysis of the condition of
the victim’s body and the BCA’s fingerprint analysis. Furthermore, the court believed an

instruction on expert testimony sufficiently covered
the topic.[9] While courts may disagree whether cautionary
jury instructions are required when DNA evidence is presented, we cannot say
the district court abused its discretion in failing to provide cautionary jury
instructions in this case.

Although we have not
considered the additional evidence on probability statistics presented at the
hearing because it exceeded the scope of the remand, we note that consideration
of that evidence would not have produced a different result. The additional evidence supports the
conclusion that use of the product rule is appropriate when applied to a known
single source sample, and Roman Nose concedes the validity of that conclusion
in his brief by acknowledging that “a random match probability statistic
[product rule] is scientifically acceptable when applied to a known single
source sample * * * .” Of the
eight items on which DNA testing was performed, six items involved single-source
samples and two items involved mixtures in which a predominant DNA profile
could be identified. While the use of
the product rule in mixtures where a predominant contributor has been
identified may be subject to some debate,[10]
we note that the DNA results from the six single-source samples are sufficient
to implicate Roman Nose in Stuedemann’s killing.

Admissibility of Testimony that BCA
Saves Half of the Sample for Defense

Roman Nose next contends
that the district court erred when it allowed Schoenbauer to testify on
redirect examination that it is BCA policy to save half of every DNA sample so
that a defense expert can perform his or her own testing on the DNA sample.[11] In support of his argument, Roman Nose
points to our rulings in State v. Porter, 526 N.W.2d 359, 365 (Minn.
1995), and State v.Jobe, 486 N.W.2d 407, 418 (Minn. 1992), in
which we concluded that a prosecutor may not comment on a defendant’s failure
to call witnesses or to contradict testimony because such comments might lead
the jury to believe that the defendant has a duty to call witnesses or bears
some burden of proof.

In response, the state
contends that we permitted precisely the same kind of question in Jobe. In Jobe, after defense counsel
suggested that there would not be sufficient blood remaining for retesting
after the state concluded its testing, the prosecutor asked the state’s blood
expert if there would be sufficient blood to test. 486 N.W.2d at 418.
The prosecutor also asked the defense’s DNA expert, who was critical of
the FBI’s DNA testing procedures, whether he could do the same testing
procedure in his laboratory if he had samples.
Id. We concluded that the
challenged questions were not as explicit as those comments that we held
improper in State v. Caron, 300 Minn. 123, 126, 218 N.W.2d 197, 199
(1974),[12]
nor did they make “the slightest suggestion that appellant was obligated to
pursue independent testing,” and consequently, the questions did not
impermissibly shift the burden of proof.
Jobe, 486 N.W.2d at 418.

Roman Nose contends that the
circumstances in Jobe are different from those in this case. Roman Nose asserts that his counsel never
suggested that he could not conduct his own DNA testing as the prosecutor did
in Jobe, 486 N.W.2d at 418, and therefore, there could be only two
possible reasons for the prosecutor’s question—the prosecutor must have either
intended to imply that Roman Nose had some obligation to independently conduct
DNA testing or that the jury could draw an adverse inference from his failure
to do his own testing, both of which are improper inferences.

The record indicates that in the cross-examination
of Schoenbauer, defense counsel questioned Schoenbauer about BCA’s policy for
assigning forensic scientists to a case and determining which samples of those
collected would be tested for DNA.
Then, seeming to challenge the thoroughness and competency of
Schoenbauer’s DNA testing, defense counsel questioned Schoenbauer about samples
taken at the crime scene on which DNA testing was not performed.[13] On redirect examination, the prosecutor then
asked Schoenbauer about BCA’s policy of preserving part of the sample so that
others, including the defense, could perform retesting on the samples tested by
the BCA. The record, therefore,
indicates that the prosecutor’s question was at least in part a response to
Roman Nose’s argument that the state’s evidence was insufficient because the
BCA failed to test all of the samples taken from the crime scene.

While we are concerned about the prosecutor’s
question regarding the defense ability to retest the sample, the district court
could have concluded that the prosecutor’s question was in response to Roman
Nose’s attack on the adequacy of the BCA’s DNA testing and not intended to
suggest that Roman Nose should have conducted his own testing. We cannot say that the court abused its
discretion in allowing the prosecutor’s question. The prosecutor’s question did not impermissibly shift the burden
of proof.

Admissibility of Picture

The district court allowed the state to admit a
picture found in Roman Nose’s bedroom that depicted a suspended human form with
arms extended and stars trailing from the hands, concluding that the picture
was relevant because the image on the picture was strikingly similar to the
position in which the victim’s body was found.
Roman Nose contends that the district court erred when it admitted the
picture because the picture in no way suggests that the human body pictured was
a victim of sexual assault and is therefore, irrelevant to his case. Moreover, even if the picture had some
minimal relevance, Roman Nose argues that its potential prejudice outweighs any
probative value it may have.

Evidence
is relevant if it has “any tendency to make the existence of anyfact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Minn. R. Evid. 401. A
review of the image in the picture and a picture of the victim’s body at the
scene indicates that there is some similarity between the position of the body
and the image of the human form suspended in the picture on Roman Nose’s
wall. While it is arguable whether this
similarity is relevant or not, we cannot conclude that the district court’s
ruling that the similarity was relevant was an abuse of discretion.

Relevant evidence, however,
may still be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice.” Minn.
R. Evid. 403. Roman Nose contends that
the probative value of the picture was outweighed by its potential prejudice because
the jury could have inferred that someone who collected such pictures has the
personality of a rapist or killer.
However, as Roman Nose himself argued, there is no indication, in
looking at the picture in isolation, that the figure depicted in the picture
was the victim of sexual assault. It is
only when viewed in relation to the position of Stuedemann’s body that the
probative value of the picture is apparent.
In that context, we cannot say that the district court erred when it
concluded that the probative value of the picture was not outweighed by its
potential for unfair prejudice.
Therefore, we conclude that the district court did not abuse its
discretion when it determined that the picture was admissible.

II.

In
addition to challenging the district court’s admission of evidence, Roman Nose
contends that the prosecutor committed misconduct by misstating key testimony
and misleading the jury about inferences it could draw from the evidence during
closing argument.[14] “This court reviews claims of prosecutorial
misconduct and will reverse only if the misconduct, when considered in light of
the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678
(Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.
2000)). In determining whether
prosecutorial misconduct deprived a defendant of a fair trial, there are two
distinct standards. Id. In cases in which the misconduct was
serious, the standard is whether the misconduct is harmless beyond a reasonable
doubt. Id. “[M]isconduct is harmless beyond a
reasonable doubt if the verdict rendered was surely unattributable to the
error.” Id. (citing State v. Hunt, 615 N.W.2d
294, 302 (Minn. 2000)). In cases
involving less serious misconduct, the standard is whether the misconduct
likely played a substantial part in influencing the jury to convict. Id.

Improper Statement of DNA Evidence

Roman Nose asserts that the
prosecutor committed misconduct in five respects. First, Roman Nose contends that the prosecutor suggested in
closing argument that Roman Nose was the source of the DNA to the exclusion of
all others in violation of our holding in Bloom. Specifically, Roman Nose challenges the following statements
made by the prosecutor:

Everywhere you look, everywhere you look it’s the
defendant’s semen. Everywhere
you look. The only place, the only
place you see anyone else’s semen identified in the unrefuted DNA evidence is
right here in the vaginal swab where it indicates that the weaker identified by
the expert is possibly Mr. Reiman’s and the victim, a combination. * * *

The defendant is the only source of the perineal
swab. It’s only the defendant.

The blood and the semen identified
on the boxer shorts, it’s only the defendant.
The blood is a mixture of the defendant and the victim.

*
* * *

What do we know about the presence
of the semen? We know that there’s only
two, two possible contributors to that semen. Two. No other evidence
here that there’s any other contributor to that semen. None, zero.
Two contributors: Andy Reiman and the defendant.

*
* * *

Who raped Jolene Stuedemann? Andy Reiman had consensual sex with his
girlfriend that night. He told you that
under oath on that witness stand. * * * That explains Andy Reiman. That’s [sic] explains why his semen’s in
there.

There’s only one other
contributor. Right there. You’re looking at him. Andy Reiman didn’t rape Jolene Stuedemann. You are led to the inescapable conclusion
that she was raped by this man. Nobody
else. There’s no other contributor of
that semen. Nobody.

And we know, and we know that who raped her also
killed her. One follows the other. They’re inseparable. Who raped her killed her.

In Bloom, we held
that properly qualified DNA experts may, assuming adequate foundation, “express
an opinion that, to a reasonable scientific certainty, the defendant is (or is
not) the source” of DNA found at the crime scene. 516 N.W.2d at 168. We
also concluded that the expert should not “be allowed to say that defendant is
the source to the exclusion of all others or to express an opinion as to the
strength of the evidence.” Id. The prosecutor’s comments that nobody
other than Roman Nose contributed to the semen and that it was “only the
defendant” are close to being a statement that the DNA samples matched Roman
Nose’s “to the exclusion of all others.”
However, when we concluded in Bloom that an expert should not “be
allowed to say that defendant is the source to the exclusion of all others,” we
were addressing expert testimony. 516
N.W.2d at 168. An expert’s testimony
would undoubtedly be viewed with greater credibility than a prosecutor’s
closing argument and therefore deserves closer attention.

Moreover, we have stated
that the prosecutor may present to the jury all legitimate arguments on the
evidence, analyze and explain the evidence, and present all proper inferences
to be drawn from the evidence. State
v.Starkey, 516 N.W.2d 918, 927-28 (Minn. 1994) (quoting State v.
Wahlberg, 296 N.W.2d 408, 419 (Minn. 1980), and finding no prosecutorial
misconduct when prosecutor in closing allegedly disparaged the role of defense
counsel and asserted his opinion concerning the credibility of a witness). The record indicates that Schoenbauer
testified that DNA testing on the semen found on the vaginal swabs indicated
that the predominant DNA profile matched Roman Nose and that she could not
eliminate Stuedemann or Reiman as possible contributors to the weaker DNA
profile. Based on this testimony, the
prosecutor’s comments that the DNA results indicated that there were only two
possible contributors to the semen found at the scene and that those
contributors were Reiman and Roman Nose would not be considered
misstatements. Further, the prosecutor
did not make an improper inference by asserting that because the DNA profiles
derived from the semen samples matched only Roman Nose and Reiman and the
presence ofReiman’s semen was explained by Reiman’s testimony that he
had consensual sex with Stuedemann earlier in the evening, the jury could infer
that it had to have been Roman Nose who raped and killed Stuedemann.That was, in fact, the prosecution’s
theory of the case. Therefore, we hold
that the prosecutor’s comments did not constitute prosecutorial misconduct.

Misrepresentation of DNA Evidence

Roman Nose next asserts that
the prosecutor misrepresented Schoenbauer’s testimony about the blood on Roman
Nose’s boxer shorts when the prosecutor told the jury that it was
Stuedemann’s blood. Roman Nose contends
that Schoenbauer actually testified that the nonsperm cell fraction found on
the boxer shorts was a DNA mixture matching Roman Nose and Stuedemann’s DNA
profiles, and that the DNA could have come from epithelial and carryover sperm
cells from a sexual act, and not the blood.
Consequently, Roman Nose contends that the prosecutor could not
conclusively state that Stuedemann’s blood was on the boxer shorts.

A review of Schoenbauer’s
testimony indicates that the boxer shorts contained a mixture of semen and
blood. Schoenbauer testified that she
was able to extract the mixture into a sperm cell fraction and a nonsperm cell
fraction. DNA analysis on the nonsperm
cell fraction indicated that the nonsperm cell fraction contained a mixture of
DNA that was consistent with being from Roman Nose and Stuedemann. On cross-examination, Schoenbauer testified
that it was possible that the mixture of Stuedemann’s and Roman Nose’s DNA
profiles in the nonsperm cell fraction came from epithelial cells and some
carryover sperm cells from a sexual act and not from the blood found on the
boxer shorts. Therefore, Roman Nose is
correct that it is possible for Stuedemann’s DNA profile to appear in the
mixture found on Roman Nose’s boxer shorts, even though the blood was not from
Stuedemann. However, it is also
possible that the blood is from Stuedemann and is the reason that her DNA
profile appeared in the mixture. As
noted above, the prosecutor may present all legitimate arguments and draw
reasonable inferences based on the evidence presented to the jury in support of
his theory of the case. Because the
record supports the possible inference that Stuedemann’s DNA profile was found
on Roman Nose’s boxer shorts because it was her blood, we cannot say that
prosecutor committed prosecutorial misconduct by his comments.

Misrepresentation of Testimony on
Fingerprint Analysis

Roman Nose further contends that the prosecutor
blatantly misrepresented the expert’s testimony concerning the location of
Roman Nose’s fingerprint when the prosecutor stated in closing arguments that
the fingerprint was found only after the paper was unraveled. A review of the record indicates that the
fingerprint expert was asked on direct examination whether the latent
fingerprint was revealed only after he pulled apart the folds of the crumpled
up piece of paper. He responded that it
was, and then went on to say that there were multiple layers of paper and that
he could not conclusively say which layer the print was on. Based on that testimony, the prosecutor
argued that the fingerprint was discovered only after the paper was unraveled
because the print was made before the paper was crumpled up. The prosecutor’s argument is a plausible
theory that is based on the evidence available—evidence which the jury was free
to accept or reject. Therefore, we hold
that the prosecutor’s remarks do not constitute misconduct.

Improper Inferences Based
on Blood on Shirt

Roman Nose next contends
that the prosecutor improperly told the jury that it could infer from the
“spots of blood all over [Roman Nose’s] shirt” that he killed Stuedemann. Citing to State v. Moore, Roman Nose
contends that blood spatter interpretation must be based on expert
testimony. 458 N.W.2d 90, 97 (Minn.
1990).

In Moore, we
recognized blood splatter analysis as a scientific technique. Id.
We also noted that blood splatter analysis is “a simple way for crime
scene investigators to determine the position of a victim’s body by the
placement and formation of the blood splatters at the time the wound was
inflicted.” Id. at 98. The prosecutor here, however, was not
engaging in blood splatter analysis to prove the position of Stuedemann’s
body. Instead, the prosecutor was
attempting to refute Roman Nose’s testimony that he had merely wiped his hands
on his shirt. The average juror,
through experience and common sense and without expert testimony, could
determine that the presence of spots of blood on the shirt is not consistent
with Roman Nose’s testimony that he wiped his bloody hands on his shirt. We, therefore, conclude that the
prosecutor’s comments do not constitute blood splatter analysis for which
expert testimony is required.
Accordingly, we conclude that the prosecutor did not commit misconduct
by his comments.

Improper Character Evidence

Finally, Roman Nose argues
that the prosecutor misused the picture from Roman Nose’s bedroom wall as
improper character evidence. In closing
arguments, Roman Nose points out that the prosecutor never argued the theory to
the jury that was offered to the court to get the picture admitted—that the
image on the picture was strikingly similar to the position in which
Stuedemann’s body was found. Instead,
the prosecutor asserted that the picture demonstrated Roman Nose’s values and
identified his personality:

And isn’t it interesting what the defendant finds to
be artistic? Isn’t it interesting what
the defendant pulls off of the internet and claims that I thought this was kind
of neat and, you know, I wanted to use it for my class I was taking, and I
think this is kind of artistic so I put it up on my wall. What do you have on
your wall at home? What you have on
your wall is what you value, what reflects your personality, what you
appreciate, what’s important to you.
Your family, your loved ones.
This is what he has on his wall. Is that a coincidence? Is that just mere happenstance? Absolutely not.

The prosecutor’s use of the
picture on the bedroom wall is troubling.
Had the prosecutor only used the picture to draw a parallel between what
was portrayed in the picture and how the victim was left at the crime scene,
use of the picture would not have been misconduct. However, the prosecutor did not compare the picture to the
position of Stuedemann’s body for the jury, and instead stated, “[w]hat you
have on your wall is what you value, what reflects your personality, what you
appreciate, what’s important to you.”
This appears to suggest that what a person has on the walls of his home
indicates what kind of person he is.
Such a suggestion is an improper character argument, and thus, we
conclude that these statements about the picture constitute prosecutorial
misconduct.

We conclude that the
prosecutor’s comments about the picture and suggestion that the picture was
indicative of Roman Nose’s character were improper. We need not decide the level of seriousness of the misconduct
because we conclude, given the overwhelming evidence of Roman Nose’s guilt,
that the jury’s verdict was surely unattributable to the prosecutor’s improper
character argument and that the misconduct is harmless beyond a reasonable
doubt.

III.

Lastly, Roman Nose
contends that the cumulative evidentiary errors committed by the district court
and the prosecutorial misconduct denied him his right to a fair trial and, that
therefore, he is entitled to a new trial.
Because we conclude that the district court did not err in its
evidentiary rulings and the prosecutorial misconduct consisted only of the
prosecutor’s statements that the picture found in Roman Nose’s bedroom was an
indication of Roman Nose’s personality and values, which we hold to be harmless
error, we conclude that Roman Nose was not denied his right to a fair
trial. Accordingly, we affirm Roman
Nose’s conviction of murder in the first degree while committing criminal
sexual conduct.

Affirmed.

[1] Schoenbauer testified that she was able to get only a
partial DNA profile from the blood on the bathroom towel but was still able to
conclude that the partial DNA profile matched Stuedemann’s. Schoenbauer further stated that the “DNA
partial profile [on the bathroom towel] only occurs in about 7.1 percent of the
population.”

[2] PCR stands for “polymerase chain reaction” technique. There are various methods of the PCR
technique of DNA testing. STR is the
newest PCR technology and stands for “short tandem repeat” technology. The PCR-STR method of testing DNA has been
used by the BCA since February 1999.

[3] Under the product rule, the probability of a random match
at each loci is multiplied together.

[4] In the initial appeal to this court, the state asserted
that “[n]ormally, the BCA reports their findings from the product rule by
stating that the DNA profile is not expected to occur more than once among
unrelated individuals in the world population.
However, Appellant chose to have Ms. Schoenbauer testify as to the actual
statistical frequency in this case.”
With these statements, the state appears to argue that Roman Nose
requested that the actual statistic generated by the product rule—the 1 in 63
trillion—be used and therefore, cannot now protest its use. Roman Nose’s motion in limine regarding this
issue indicates that Roman Nose requested that the district court “prohibit the
admissibility of a single frequency statistic and rather limit the state to
presenting the statistical frequencies of each individual allele. In the alternative, defense requests an
order by the [c]ourt prohibiting the state from using the language, ‘not likelyto reappear in the population’ and limiting statistical evidence to the
actual frequency found.” While it is
unclear what exactly Roman Nose meant by his request in the alternative for the
statistical evidence to be limited to the “actual frequency found,” Roman Nose
consistently asked the court to prohibit use of the product rule in his
motion. Thus, we cannot say that Roman
Nose requested the use of the product rule and therefore cannot now challenge
it on appeal.

[5] The CPE method “provides an estimate of the portion of the
population that has a genotype composed of at least one allele not observed in
the mixed profile.” DNA Advisory Board,
Statistical and Population Genetics Issues Affecting the Evaluation of the
Frequency of Occurrence of DNA Profiles Calculated from Pertinent Population
Database(s), Forensic Science Communications, 2, July 2000, at 5, available
at http://www.fbi.gov/hq/lab/fsc/backissu/july2000/dnastat.htm. The advantages of the CPE method are: (1) it is a conservative estimate; (2)
knowledge of the accused or the victim profiles is not used or needed in the
calculation; and (3) no assumptions are required about the identity or number
of contributors to the mixture. Id.

[6] The LR method “provides the odds ratio of two competing
hypotheses, given the evidence.” DNA
Advisory Board, supra note 5, at 5. According to Dr. Bieber, typically the numerator of the ratio
would be the probability of observing the evidence given the mixture is
comprised of the victim and the defendant over the denominator which is the probability
of observing the evidence if the mixture is comprised of the victim and some
other unknown person. Unlike the CPE
method, the LR method requires a hypothesis about the number of contributors
and who they are. Id. at 5-6.

[7] The full text of the NRC recommendations in Chapter 4 are
as follows:

Recommendation 4.1: In
general, the calculation of a profile frequency should be made with the product
rule. If the race of the person who
left the evidence-sample DNA is known, the database for the person’s race should
be used; if the race is not known, calculations for all racial groups to which
possible suspects belong should be made. * * *

* * * *

Recommendation 4.2: If the
particular subpopulation from which the evidence sample came is known, the
allele frequencies for the specific subgroup should be used as described in
Recommendation 4.1. If allele
frequencies for the subgroup are not available, although data for the full
population are, then the calculations should use the population-structure
Equations 4.10 for each locus, and the resulting values should then be
multiplied.

* * * *

Recommendation 4.3: If the
person who contributed the evidence sample is from a group or tribe for which
no adequate database exists, data from several other groups or tribes thought
to be closely related to it should be used.
The profile frequency should be calculated as described in
Recommendation 4.1 for each group or tribe.

* * * *

Recommendation 4.4: If the
possible contributors of the evidence sample include relatives of the suspect,
DNA profiles of those relatives should be obtained. If these profiles cannot be obtained, the probability of finding
the evidentiary profile in those relatives should be calculated with Formulae
4.8 or 4.9.

National
Research Council, supra, at 122-23.

[8] In Bloom, Justice Page recommended that when random
match probability statistics are used, jurors should, at a minimum, be provided
the following:

(1)A
given DNA profile may be shared by two or more people;

(2)The
random match probability statistic is not the equivalent of a statistic that
tells the jury the likelihood of whether the defendant committed the crime;

(3)The
random match probability statistic is the likelihood that a random person in
the population would match the characteristics that were found in the crime
scene evidence and also in defendant’s DNA;

(4)Where
the known DNA sample from the defendant matches the unknown sample obtained
from the crime scene, it does not necessarily mean the defendant is the source
of the sample found at the crime scene; and

(5)That
jurors alone have the final responsibility to decide the weight to be given to
DNA random match probability statistics.

A witness who has special training, education, or
experience in a particular science, occupation, or calling is allowed to
express an opinion as to certain facts.
In determining the believability and weight to be given such opinion
evidence you may consider the education, training, experience, knowledge, and
ability of the witness; the reasons given for the opinion; the sources of the
information; factors already given you for evaluating the testimony of any
witness. Such opinion evidence is
entitled to neither more nor less consideration by you than any other evidence.

[10] Two of the state’s experts
testified that if the mixture was such that two profiles were clearly
identifiable and one of the profiles could be identified coming from the
victim, then the second profile could be treated as a single-source calculation
and the product rule could be used to present the DNA evidence. DAB guidelines consistent with that
testimony were introduced into evidence.
DNA Advisory Board, supra note 5, at 5.

One of the defense
experts testified that all three statistical methods—product rule, CPE, and
LR—are generally accepted in the scientific community for reporting mixtures,
another testified that it was never appropriate to use the product rule when
reporting a mixture, and another testified to the use of the product rule for
single-source sample and the CPE method for all mixtures.

[11] Specifically, in questioning Schoenbauer the prosecutor
asked, “Okay. Is it BCA’s policy to allow evidence, such as what we have here
that you’ve tested, accessible to any other individual, any other experts, for
retesting?” At that point the defense
objected to the question and the district court judge overruled the
objection. Schoenbauer then responded,
“BCA policy is to save half of every sample in order for an expert from the
defense, if desired, to retest those items.”

[12] In the state’s closing argument in Caron, the
prosecutor questioned why the defendant did not present certain alibi
witnesses. 300 Minn. at 126-27, 218
N.W.2d at 200. We concluded that the comments
of the prosecutor in Caron were improper, but that a new trial was not
warranted because the error was harmless and the defendant did not object at
trial or seek curative instructions. Id.
at 127-28; 218 N.W.2d at 200-01.

[13] Schoenbauer testified that the BCA generally does not do DNA
testing on all samples received due to cost and time limitations. Instead, the decision of which samples to
test is determined by discussion between the investigator, a crime scene
leader, and the forensic scientist.

[14] Roman Nose did not raise specific objections to the
prosecutor’s closing arguments that he now challenges on appeal but instead
raised a general objection after conclusion of the closing arguments.